Citation Nr: 0305283
Decision Date: 03/20/03 Archive Date: 04/03/03
DOCKET NO. 97-22 141 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Huntington, West Virginia
THE ISSUE
Entitlement to a higher evaluation for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: AMVETS
ATTORNEY FOR THE BOARD
G. Zills, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1968 to March
1970.
This case comes before the Board of Veterans' Appeals (Board)
from a June 1996 RO decision which granted service connection
and a 10 percent rating for PTSD, effective from November 17,
1995 (the date of RO receipt of the application for service
connection). The veteran appealed for a higher rating. In
an April 1998 decision, the RO granted a higher rating of 50
percent for PTSD, effective from June 30, 1997. In September
2000, the Board remanded the claim to the RO for additional
development. In a January 2003 decision, the RO granted a
higher rating of 70 percent for PTSD (with major depression),
effective from November 14, 2000. The veteran continues to
appeal for a higher rating.
FINDINGS OF FACT
As of November 17, 1995, when service connection became
effective, PTSD produced a definite degree of industrial and
social impairment; as of June 30, 1997, PTSD produced no more
than considerable industrial and social impairment, and no
more than some occupational and social impairment with
reduced reliability and productivity due to various symptoms;
and as of March 2, 1998, PTSD produces total occupational and
social impairment.
CONCLUSIONS OF LAW
PTSD is 30 percent disabling effective from November 17,
1995; it is 50 percent disabling from June 30, 1997; and it
is 100 percent disabling from March 2, 1998. 38 U.S.C.A. §
1155 (West 2002); 38 C.F.R. § 4.132, Diagnostic Code 9411
(1996); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Factual Background
The veteran served on active duty in the Army from August
1968 to March 1970, including combat service in Vietnam. His
service medical records show no mental disorder.
In August 1983, the veteran was given a VA general medical
examination. Diagnoses included anxiety with depressive
features.
In September 1983, the RO denied service connection for a
psychiatric disorder.
VA outpatient treatment records from December 1994 and later
show the veteran being seen for psychiatric counseling, with
diagnoses including PTSD.
On November 17, 1995, the RO received the veteran's claim for
service connection for PTSD.
In May 1996, the veteran was given a VA PTSD examination. He
indicated that he had been receiving psychiatric counseling
at a Vet Center for over a year. He stated that he was
always angry and hostile, and had difficulty coping with
things. He reported that he had frequent nightmares about
Vietnam, and preferred to isolate himself and avoid contact
with other people. He indicated that he had no friends, and
spent a lot of his time listening to music by himself. He
stated that he worked 7 days a week, 8 to 10 hours per day,
as a fork lift operator for a lumber company. He liked
working alone and was uncomfortable working around others.
He had held his job for 15 years without missing a day of
work. The veteran was married and had children. He stated
that he slept about 4 hours a night, with frequent waking.
He said he walked around at night checking doors and windows.
He was on no medication. On objective examination, there was
a noticeable tendency to dissociation. He indicated that he
honestly didn't believe he had been in Vietnam, yet he
related details of events occurring there. There was no
evidence of psychotic process. His affect was appropriate
and his thinking was goal-directed and well-organized. There
was no bizarre content. The examiner reported that there
were areas where the veteran functioned well, such as at
work, but that he had classic PTSD symptoms including a
strong tendency to dissociate, isolation from others, and
nightmares. The examiner's diagnosis was PTSD, and the
veteran was given a Global Assessment of Functioning (GAF)
score of 60.
In a December 1996 statement, the veteran claimed his PTSD
was worse than rated by the RO. He said he had no friends,
had problems in his marriage, and at his job he worked by
himself.
In a February 1997 letter, Dr. Burton W. Pearl stated that
that he had been treating the veteran for persistent low back
pain, and that the veteran had been out of work for almost
one year because of a degenerated herniated lumbar disc. Dr.
Pearl opined that the veteran would not be able to return to
his employment because of his back condition.
In a statement dated in April 1997, a brother of the veteran
detailed the personality changes in the veteran from before
and after his service in Vietnam. He stated that before
Vietnam, his brother had been an outgoing person who was very
ambitious. After Vietnam, his brother showed very little
affection and concern for things, and had lost his ambition.
He stated that the veteran had been in counseling and therapy
for 2 years, and had had recurrent nightmares about his
experiences in Vietnam.
In a letter dated in May 1997, Dr. Mark C. Cox, a
psychologist, stated that he had treated the veteran from
April 1993 to June 1994. Dr. Cox opined that the veteran had
major depression and generalized anxiety disorder which was
largely related to his experiences in Vietnam. He stated
that at the time of the veteran's discharge from his care,
the veteran's psychological functioning was only minimally
improved.
In a June 1997 statement, the veteran indicated that he left
his last job in February 1996.
In a statement dated in June 1997, the veteran's wife
described his current condition and their relationship, and
indicated that she met the veteran following his return from
Vietnam. She indicated that he used his work as a way of
escaping the memories of Vietnam, and that he had difficulty
interacting with her and his children. She reported that he
was very quiet and withdrawn and did not like to associate
with others. She stated that he had feelings of guilt,
anxiety, and depression.
In a letter dated June 30, 1997, John Gurgick, a VA
counseling psychologist, reported that the veteran
experienced nightmares, flashbacks, anger, rage, depression,
and difficulty dealing with authority figures. He also had
difficulty with intimacy and trusting people, and did not
like to be in crowds. It was indicated that treatment had
been provided since 1993, and the veteran was currently in
active outpatient treatment. It was also reported that the
veteran had a back condition due to a work-related injury he
received in February 1996. Dr. Gurgick opined that as a
result of the veteran's PTSD and back symptoms, he was unable
to engage in any training or work-related activities.
An August 1997 Social Security Administration (SSA) decision
found the veteran was entitled to SSA disability benefits.
He reportedly was unable to work and under a disability since
February 9, 1996. The SSA found that the veteran's severe
disabilities were three herniated discs and constant low back
pain. Medical and other records considered by the SSA were
obtained by the RO.
VA outpatient treatment records from 1997 to 1998 show the
veteran being seen for a variety of conditions including
PTSD. Psychiatric complaints included such symptoms as
nightmares, flashbacks, difficulty with emotional control,
depression, anxiety, and survivor's guilt. Multiple physical
ailments were noted during this time, such as a cervical
spine disorder (for which he had surgery) and a low back
disorder.
On March 2, 1998, the veteran was given another VA PTSD
examination. It was indicated that he had not worked for the
prior two years as a result of a back condition, reportedly
from injury while working. It was related that when he
worked, he preferred to work under solitary conditions and
not be required to interact with others. He reported that he
was currently receiving treatment for PTSD. He said that he
had flashbacks and nightmares. He reported rage over people
not helping him with his problems. He admitted to having
suicidal impulses on occasion. He reported hypervigilance.
The examiner noted that the veteran had exhibited a
disturbance of his sense of reality even before going into
the military, according to the history he provided. The
examiner's diagnosis was severe PTSD, with an underlying
schizophrenic-type personality disorder. He was given a GAF
score of 21, which was noted to indicate severe impairment of
judgment and reality testing and severe and chronic PTSD for
many years.
A November 14, 2000 VA treatment summary submitted by Rod
Kelley, a Vet Center social worker, stated that the veteran
had been attending PTSD counseling sessions for the prior
year. The veteran was indicated to have chronic and severe
PTSD symptoms including auditory and visual flashbacks of
war-related trauma. He experienced anxiety, depression, and
poor impulse control which resulted in physical violence and
verbal abuse towards his wife and family. He had nightmares
five times a week and felt like he was waking up in Vietnam.
He reported suicidal and homicidal ideation, and responded
with outbursts of anger when upset or confused. His speech
was circumstantial, irrelevant, and at times illogical. He
exhibited occupational and social impairment with
deficiencies in most areas, including work, family relations,
judgment, thinking, and mood. His current level of
functioning was very poor and there was likely to be only
minimal improvement. Efforts were being directed towards
maintaining his current level of functioning. His diagnosis
was severe and chronic PTSD related to Vietnam war zone
stressors, and he was given a GAF of 40 which reflected
suicidal ideation and major impairment in social and
occupational functioning.
Among the SSA documents is one from March 2001, noting that
SSA disability benefits were being continued. This SSA
document lists the primary diagnosis as PTSD, and the
secondary diagnosis as low back pain syndrome.
Ongoing VA medical records dated into 2002 show periodic
treatment for PTSD and for physical ailments.
In December 2002, the veteran was again given a VA PTSD
examination. It was noted he was still married and had
children, and he had not worked since a 1996 job injury. He
reported nightmares and flashbacks, and stated that he
patrolled his house every night. He further reported
avoidance of Vietnam stimuli, diminished interest in
activities, feelings of detachment and estrangement, a sense
of a foreshortened future, sleep difficulty, irritability and
outbursts of anger, difficulty concentrating, hypervigilance,
exaggerated startle response, survivor's guilt, memory
impairment and forgetfulness, disillusionment with authority,
sadness and depression, and feelings of helplessness and
being overwhelmed. He reported that he had not worked since
1996 and was married with three children. On objective
examination, he described depressive symptoms which included
increased dysphoria, anhedonia, fatigue, irritability,
difficulty sleeping, early morning awakening, and difficulty
with memory, recall, and concentration. He denied suicidal
and homicidal ideations. He had no psychotic or manic
symptoms or history of mood swings. The examiner's diagnoses
were PTSD and recurrent episodes of major depression. He was
given a GAF score of 45 based on his PTSD alone. The
examiner noted that the veteran's primary problem was PTSD,
with depression being secondary to PTSD.
The RO has established service connection and a 10 percent
rating for PTSD as of November 17, 1995 when the claim was
received; the RO assigned a higher 50 percent rating for PTSD
as of June 30, 1997 (date of a medical statement showing a
worse condition); and the RO assigned a higher 70 percent
rating for PTSD (with major depression) as of November 14,
2000 (date of a medical statement showing a worse condition).
The veteran is also service-connected for diabetes (rated 20
percent) and malaria (rated 0 percent).
II. Analysis
The file shows that through correspondence, the rating
decision, the statement of the case, the supplemental
statements of the case, and a Board remand, the veteran has
been notified of the evidence necessary to substantiate his
claim for a higher rating for PTSD (with major depression).
Relevant medical records have been obtained and VA
examinations have been provided. The Board finds that the
notice and duty to assist provisions of the law have been
satisfied. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R.
§ 3.159.
Service connection for PTSD is effective with the veteran's
November 17, 1995 claim. The RO has rated PTSD 10 percent
from November 17, 1995, 50 percent from June 30, 1997, and 70
percent from November 14, 2000. Since this an initial rating
case, on the granting of service connection, the Board must
determine the proper evaluation since the effective date of
service connection, including any indicated "staged ratings"
(i.e., different percentage ratings for different periods of
time based on the facts found). Fenderson v. West, 12 Vet.
App. 119 (1999).
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. Separate diagnostic codes identify the
various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
During the rating period in issue, the criteria for
evaluating mental disorders were revised. Either the old or
new rating criteria may apply, whichever are most favorable
to the veteran, although the new rating criteria are only
applicable since their effective date. Karnas v. Derwinski,
1 Vet.App. 308 (1990); VAOPGCPREC 3-2000.
Under rating criteria in effect prior to November 7, 1996,
PTSD is rated 10 percent where it produces emotional tension
or other evidence of anxiety which is productive of mild
social and industrial impairment. PTSD is rated 30 percent
when it results in definite impairment in the ability to
establish or maintain effective and wholesome relationships
with people, and where psychoneurotic symptoms result in such
reduction in initiative, flexibility, efficiency and
reliability levels as to produce definite industrial
impairment. PTSD is to be rated 50 percent when the ability
to establish or maintain effective or favorable relationships
with people is considerably impaired, and when by reason of
psychoneurotic symptoms the reliability, flexibility, and
efficiency levels are so reduced as to result in considerable
industrial impairment. A 70 percent rating is assigned when
symptoms result in severe social and industrial impairment.
A 100 percent rating is assigned when the attitudes of all
contacts except the most intimate are so adverely affected as
to result in virtual isolation in the community; or totally
incapacitating psychoneurotic symptoms bordering on gross
repudiation of reality with disturbed thought and behavioral
processes associated with almost all daily activities such as
fantasy, confusion, panic, and explosions of aggressive
energy resulting in profound retreat from mature behavior; or
demonstrably unable to obtain or retain employment. 38
C.F.R. § 4.132, Code 9411 (1996).
Under rating criteria which became effective on November 7,
1996, PTSD is rated 10 percent when it produces occupational
and social impairment due to mild or transient symptoms which
decrease work efficiency and ability to perform occupational
tasks during periods of significant stress, or where symptoms
are controlled by continuous medication. PTSD is rated 30
percent when it results in occupational and social impairment
with occasional decrease in work efficiency and intermittent
periods of inability to perform occupational tasks (although
generally functioning satisfactorily, with routine behavior,
self-care, and conversation normal), due to such symptoms as:
depressed mood, anxiety, suspiciousness, panic attacks
(weekly or less often), chronic sleep impairment, and mild
memory loss (such as forgetting names, directions, recent
events). A rating of 50 percent is assigned for PTSD when it
results in occupational and social impairment with reduced
reliability and productivity due to such symptoms as
flattened affect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks more than once a week;
difficulty in understanding complex commands; impairment of
short and long term memory (e.g., retention of only highly
learned material, forgetting to complete tasks); impaired
judgment; impaired abstract thinking; disturbances of
motivation and mood; and difficulty in establishing and
maintaining effective work and social relationships. PTSD is
rated 70 percent when it produces occupational and social
impairment, with deficiencies in most areas, such as work,
school, family relations, judgment, thinking, or mood, due to
such symptoms as: suicidal ideation; obsessional rituals
which interfere with routine activities; speech
intermittently illogical, obscure, or irrelevant; near-
continuous panic or depression affecting the ability to
function independently, appropriately and effectively;
impaired impulse control (such as unprovoked irritability
with periods of violence); spatial disorientation; neglect of
personal appearance and hygiene; difficulty in adapting to
stressful circumstances (including work or a worklike
setting); inability to establish and maintain effective
relationships. PTSD is rated 100 percent when it produces
total occupational and social impairment, due to such
symptoms as: gross impairment in thought processes or
communication; persistent delusions or hallucinations;
grossly inappropriate behavior; persistent danger of hurting
self or others; intermittent inability to perform activities
of daily living (including maintenance of minimal personal
hygiene); disorientation to time or place; memory loss for
names of close relatives, own occupation, or own name.
38 C.F.R. § 4.130, Diagnostic Code 9411 (2002)
After a review of all the evidence, the Board finds that as
of November 17, 1995, when service connection became
effective, PTSD produced a definite degree of industrial and
social impairment, and this supports a 30 percent rating
under the old rating criteria which were then in effect.
While it is true the veteran was working full-time as of this
date, the evidence as a whole indicates that he was then
having adjustment problems at home and at work, and he had
begun counseling. Instead of the 10 percent rating assigned
by the RO for PTSD as of November 17, 1995, the Board will
assign a 30 percent rating for the condition as of that date.
The veteran stopped working in February 1996, due to a back
disorder which reportedly was the result of a work injury.
He has not returned to work since. SSA disability benefits
were granted, initially based only on the back disorder.
Disability from a non-service-connected condition is not to
be considered when rating a service-connected disorder.
38 C.F.R. § 4.14.
The RO assigned a higher "staged rating" of 50 percent for
PTSD as of June 30, 1997, which is the date of a counseling
psychologist's letter describing a worsened condition. The
Board finds that as of that date PTSD produced no more than
considerable industrial and social impairment, and no more
than some occupational and social impairment with reduced
reliability and productivity due to various symptoms; thus no
more than a 50 percent rating under either the old or new
rating criteria is warranted. Evidence pertinent to this
time period still primarily shows disability from the non-
service-connected back disorder, even if the service-
connected PTSD may have somewhat worsened to the point that
it was 50 percent disabling, as rated by the RO.
Even though the veteran initially stopped working due to a
back disorder, it seems from the evidence that, without a
job, his psychiatric adjustment gradually deteriorated. Such
is shown in the ongoing medical records, as well as a 2001
SSA document which indicates that SSA disability benefits
were being continued based on a primary diagnosis of PTSD
(with a back disorder now being a secondary diagnosis). The
evidence demonstrates that PTSD has worsened to the point
that it now produces total occupational (industrial) and
social impairment, warranting a 100 percent rating under
either the old or new rating criteria. It appears that the
March 2, 1998 VA examination (with its dismal assessment and
low GAF score) is the earliest date as of which it is
ascertainable that PTSD became totally disabling. Thus a
"staged rating" of 100 percent for PTSD will be assigned
from March 2, 1998 to the present.
In sum, the Board assigns the following "staged ratings"
for PTSD: 30 percent from November 17, 1995; 50 percent from
June 30, 1997; and 100 percent from March 2, 1998. To this
extent, a higher rating for PTSD is granted. The benefit-of-
the-doubt rule, 38 U.S.C.A. § 5107(b), has been applied in
making this decision.
ORDER
PTSD is to be rated 30 percent from November 17, 1995, 50
percent from June 30, 1997, and 100 percent from March 2,
1998. To this extent, a higher rating for PTSD is granted.
____________________________________________
L. W. TOBIN
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.